With Washington Taking a Step Back on Transgender Students, Schools Need to Step Up

by Michael Sadowski on March 15,2017

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

This statement of just over forty words from the US Supreme Court on Monday, March 6, sent a blunt message to transgender students across the country: the federal government no longer has your back.

With the G.G. v. Gloucester County School Board case sent back the US Court of Appeals for the Fourth Circuit, transgender youth—already one of the most vulnerable populations in our nation’s schools—were dealt another blow not only to their rights but also to their sense of themselves as people worthy of respect.

While it’s true that we don’t yet know what effect the Supreme Court’s latest action will ultimately have on transgender students’ right to use bathrooms in accordance with their gender identities (the subject of the G.G., or Gavin Grimm, case), its stated rationale is troubling. The court’s words “in light of the guidance document issued by the Department of Education and Department of Justice” suggest that the Trump team, in rescinding the Obama administration’s detailed articulation of transgender students’ rights under Title IX, is justified in stripping these rights away with the stroke of a pen, at least in the short-term.

In the absence of federal guidance to support transgender students, states and local school districts now must fill the void. Instead of using the Trump rescission and Supreme Court deferral as license to discriminate, school districts and state and local governments must do the opposite: redouble their efforts to ensure that transgender students and their teachers know that they have the right to live in accordance with their gender identities—and know exactly what this means in terms of day-to-day life at school. The Los Angeles Unified School District policy on the rights of transgender students, outlined in my book Safe Is Not Enough: Better Schools for LGBTQ Students, provides a model. These rights extend to more than bathroom use. They affect everything from extracurricular activities and sports, to the maintenance of school records that don’t result in the inadvertent “outing” of students, to the use of names and pronouns that show respect for who students really are.

Spelling out such things in clear, unambiguous terms is especially essential now, when educators—and, even worse, kids—are getting the message from Washington that transgender student rights are on hold. The current generation of transgender students can’t wait, so states, local governments, and districts need to step up where the federal government has taken a step back.

There has already been at least one report of a school district changing its policies and citing the Trump Administration rescission as justification. A school board in Derby, Kansas, recently voted five to two to revoke a policy put in place last year to allow transgender students, on a case-by-case basis, to use bathrooms in accordance with their gender identities. As Derby superintendent Craig Wilford, quoted on Wichita’s NPR affiliate KMUW, said of the board, “They had looked at the first [Obama] guidance letter as not having provided the district any options and the second guidance letter providing an opportunity for the board to take a position.” The position, it turned out, was to take away rights it had previously recognized.

Regardless of how the issue ultimately plays out in the courts, there is little doubt that these regressive developments have already resulted in psychic damage to transgender students and their families. (It is difficult even to imagine what the school day is now like for a Derby transgender student, who could previously use a gender-appropriate bathroom, having lost that right on March 6.) In an amicus brief filed for the Grimm case with the US Court of Appeals for the Fourth Circuit, the World Professional Association for Transgender Health and other health organizations cited data showing that 83 percent of transgender youth have thought about committing suicide, and more than half have attempted it. As the brief also pointed out, identity formation is central to the development of all adolescents, and policy decisions that shame and stigmatize transgender youth only serve to reinforce the all too prevalent societal message that there is something wrong with them.

The Trump administration’s rescission was filled with explanatory language about the Obama guidance’s lack of ”extensive legal analysis” and about the need for “due regard for the primary role of the States and local school districts in establishing educational policy .” It also made reference to the need to “ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” though it offered no specifics about how this goal might be achieved.

Considered alongside the lived experience of children and adolescents who are forced to endure stigma and humiliation every day, arguments about states’ rights or “legal analysis”— even generic statements about the need to prevent bullying—sound disingenuous at best. Worse yet are the specious arguments about “privacy” put forth by many transgender rights opponents who perpetuate the lie that allowing transgender students to use school facilities in accordance with their gender identities exposes children to predators who would abuse the policy (as if any student would pose as transgender daily, across all aspects of their school life, just to gain access to a bathroom). As any good teacher or parent knows, legal minutiae, unspecific anti-bullying policies, and false, abstract notions of privacy don’t matter to kids. But feeling that they are OK just as they are matters a lot.